Intellectual Property Blog

SCOTUS to Public Officials: Private Eyes Are Watching You...Post to Your Social Media

Removing negative comments or blocking someone from your social media page may seem harmless, but if you’re a public official, a new holding from the United States Supreme Court may give you pause about how you use your social media.

In Lindke v. Freed, the City Manager of Port Huron, Michigan, would post both personal and official city government information on his own public Facebook page. After local resident Kevin Lindke made comments criticizing Freed’s response to the city’s Covid-19 response, Freed removed Lindke’s comments and completely blocked him from the Facebook page.

In its holding, the Supreme Court first acknowledged that the First Amendment rights of citizens can be violated when a public official deletes the citizens’ comments or blocks them. That’s an easy call to make on official social media pages, but it becomes more difficult when the page is that public official’s personal profile. Complicating things further is the Court’s relatively nuanced take that the public official is also entitled to discuss information related to their official responsibilities in their private capacity, and removing or blocking commenters in those situations is not a violation of First Amendment rights.

According to the Court, if the official uses the page in a mixed personal/official fashion, it will then require a fact-specific undertaking depending on the content and the function of the social media post. Where a post announces something wholly official, it will be deemed official government information, and commentary/users cannot be restricted if the post is otherwise public.

The Court set out a two-part test to clarify when First Amendment rights are implicated on public officials’ social media pages. The analysis looks at:

1. Whether the official possesses “actual authority” to speak on the government’s behalf and the post falls within the subject area of the official’s duties.

2. Whether the official purports to exercise that authority when speaking on social media.

The test provides some boundaries and at least a little guidance for public officials on social media, but there are some best practices that they should adhere to preempt these kinds of issues. First, public officials should put disclaimers on their social media accounts stating they are personal and not official, which would entitle the public official to a “heavy presumption that all the posts on the page were personal.” A phrase such as “Views expressed are strictly my own” may be sufficient. Second, public officials should avoid having staff members operate or post on an official’s personal accounts, which would tend to give the appearance of official outlets. Finally, it goes without saying that keeping personal accounts private and only disseminating official information on official and public channels is a common-sense best practice.

In a per curiam holding decided contemporaneously with Lindke, O’Connor-Ratcliff v. Garnier involved school board members blocking parents from commenting on their personal social media accounts from which they also shared official school board information. It was remanded in light of the new test in Lindke.

If you are a public official in need of guidance on the ins and outs of social media, contact McBrayer’s intellectual property lawyers today.

Bruce Paul is a Member of McBrayer PLLC, practicing in the firm's Louisville office.  His law practice primarily focuses on intellectual property, copyright law, trademarks, commercial and business litigation, employment law, and infringement litigation. Mr. Paul can be reached at bpaul@mcbrayerfirm.com or (502) 783-6245. 

Services may be performed by others. This article does not constitute legal advice.